Medchem (P.R.), Inc. - Page 32




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          from its active conduct of a trade or business within Puerto                
          Rico.                                                                       
               We are unable to find that such was the case.  MedChem P.R.            
          did not actively conduct a trade or business within Puerto Rico             
          throughout the 3-year period.  Whether MedChem P.R. actively                
          conducted such a trade or business is a highly fact intensive               
          issue as to which petitioners bear the burden of proof.  Cf.                
          Higgins v. Commissioner, 312 U.S. 212, 217 (1941); Deputy v. du             
          Pont, 308 U.S. 488, 496 (1940); Welch v. Helvering, 290 U.S. 111,           
          115 (1933); Plymouth Sav. Bank v. United States, 187 F.3d 203,              
          210 (1st Cir. 1999).  Because Congress has not explicitly defined           
          the phrase “active conduct of a trade or business” for purposes             
          of section 936(a) (or, for that matter, for any other purpose of            
          the Code), Congress has essentially left it to the Secretary to             
          define that phrase by way of regulations or, in the absence of              
          regulations, to the courts to construe the phrase by way of                 
          judicial interpretation.  As the Supreme Court observed in                  
          construing the phrase “trade or business” for purposes of section           
          162(a):                                                                     
                    The phrase “trade or business” has been in �                      
               162(a) and in that section’s predecessors for many                     
               years.  Indeed, the phrase is common in the Code, for                  
               it appears in over 50 sections and 800 subsections and                 
               in hundreds of places in proposed and final income tax                 
               regulations.  The slightly longer phrases, “carrying on                
               a trade or business” and “engaging in a trade or                       
               business,” themselves are used no less than 60 times in                
               the Code.  The concept thus has a well-known and almost                
               constant presence on our tax-law terrain.  Despite                     





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